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Doherty & Others v Birmingham City Council [2008] UKHL 57

The House of Lords gave judgment in the latest of its attempts to resolve the application of Article 8 European Convention on Human Rights to possession actions on 30^th July 2008.  The decision leaves many questions unanswered and may be ripe for further challenge in view of the developing jurisprudence of the Strasbourg Court. 

As the law stands after Doherty, public authorities are offered a tempting statutory defence to such challenges under s6(2) of the Human Rights Act 1998 but whether this is actually available may have to be determined on a “case by case basis”.  Occupiers of land, and their advisers, should therefore continue to rely upon Article 8.  Where Convention rights cannot be relied upon Doherty significantly expands the scope of the “judicial review” style defence first suggested in Kay & Others v Lambeth LBC [2006] 2 AC 465 and the way is apparently open for such defences to be put forward as a defence to a possession action.  Most surprisingly of all, the House of Lords has unanimously endorsed the proposition that a defendant may challenge not only the decision, but the factual basis of it, by way of such a “judicial review” defence.  Whether the ability to challenge the factual basis of a public authority’s decision is of wider application remains to be seen.

Full article on this case will be published shortly.